R. v. William Haining, Crim. Sass. 295-D-69; 1/4/69; Georges, C. J.

R v. William Haining, Crim. Sass. 295-D-69; 1/4/69; Georges, C. J.

The accused was charged, inter alia, with a corrupt transaction c/s 3(1), Prevention of Corruption Ordinance, Cap. 400. in particular it was alleged that the accused, while he was Regional Engineer of Mwanza, and a public servant, had corruptly accepted for himself a Mercedes Benz Saloon car from Zahir Ahmed, the director of a firm which held a contract with the Ministry of Communications, Transport and Labour, as a reward for showing favour to the Company in the affairs of the Ministry. On the basis of the evidence, the High Court convicted the accused, and this part of the judgment is not reproduced. However the court’s ruling on the burden of proof is given below.

            Held; (1) “Section 3(1) in as far as it is relevant to the facts under consideration reads: “Any person who by himself ….. Corruptly accepts or obtains ……. From any person for himself …….. Any consideration as an inducement to or a reward for ……. Doing or forbearing to do or having done or foreborne to do anything in relation to his principal’s affairs shall be guilty of an offence ……” of particular relevance in this case is section 8 which reads:- “Where in any proceedings under section 3, it is proved that any consideration has been …… obtained by an agent of the Republic or of a public body by or from a person holding or seeking to obtain a contract from the Republic or from any public body, the consideration shall be deemed to have been obtained corruptly as such inducement or reward as is mentioned in section 3 unless the contrary is proved.” It is common ground that the onus shifted on to an accused person by the operation of section 8 is not one of proving the contrary beyond a reasonable doubt. If he can show on the balance of probabilities that he did not obtain the inducement corruptly as is mentioned in section 3 he must be acquitted. There would appear to be no East African authority on the point. Advocate for the republic quoted the case of R. v. Howard Bateman Carr Briant 29 Cr. App. Rep. 76. There the Court of criminal Appeal considered the section of an English statute which is in terms almost identical with section 8 of the Ordinance and concluded that the burden resting on an accused person was that of proving the contrary on the balance of probabilities. The reasonable is persuasive and I am content to accept it. It seems to me as a matter of policy that an accused person ought never to have placed on him the burden of proving his innocence beyond a reasonable doubt.” (2) “What must the Republic establish before the burden shifts? In a preliminary /ruling on an objection that the charge did not contain sufficient particulars I held that once the republic had established that the accused was an engineer employed with the Government, that he had received a gift from Zahir Ahmed and that at that time Zahir Ahmed was a contractor or likely to be holding contract from Government with which the accused would be concerned, then it would be presumed that he had received the gift corruptly unless he proved the contrary …. At the very end …… the junior advocate for the defence ……. Urged in effect that section did not throw on the accused any burden other than that of disproving the corruptness” of the transaction and that the burden of proving the consideration and of proving that it had been given as an inducement or reward for forbearing or for having forborne taking some action in relation to one’s principal’s affairs summarized the defence contends that to establish an offence under section 3 the following must be proved: (i) that the person charged received a consideration; (ii) that he received this consideration corruptly (iii) that he received it as an inducement or reward for doing or forbearing to do or having forborne to do something in relation to

his principal’s affairs. There could be situations in which the Republic could establish propositions (i) and (iii) and yet fail because it could not establish proposition (ii) beyond a reasonable doubt in the case of the giver of the consideration this has been illustrated by the case of Mandia v. Republic (1966) E.A. 315. There it was held that a magistrate was not guilty of an offence against a Kenyan enactment corresponding to section 3(2) of the Ordinance where he had given a bribe to a police constable, his motives being to test the constable as he had “heard of these things and wanted to test to know if it was real”. The Court of Appeal held that the Republic had to prove an evil intention on the part of the giver. The proposition would apply equally to the receiver. It was evil intention which section 8 presumed statutorily unless the contrary was proved. The Republic still had to prove beyond reasonable doubt the fact that consideration had been given and that it had been given as an inducement or reward. This interpretation would narrow considerably the effect of section 8 as it could only be in the exceptional case (other than that of the deliberately laid trap for the purpose of providing evidence of the commission of an offence under section 3 (1) and (2) that this issue of motive would ever be relevant. On a grammatical analysis of the section it would seem, however, that the word “deemed” governs not only the word “corruptly” but also the phrase “such inducement or reward ….. “Which follows? The position could be stated thus – (i) “the consideration shall be deemed to have been obtained corruptly; (ii) “the consideration shall be deemed to have been obtained as such inducement or reward as is mentioned in section 3”. There would seem to be no sound reason why the deeming should govern only the word which immediately follows it and not the whole phrase. It could be argued that his interpretation would in effect equate section 3 with section as far as public servants were concerned when the received gifts from persons holding contracts from the Republic. It does bring the two sections very close to each other but hey would not be identical. It would still be possible for a public servant charged under section 3(1) and proved to have received a gift, to show on the balance of probabilities that he was not corrupt where as such an explanation would not avail as a defence to a charge under section 6. This distinction is significant. In the course of considering this matter my mind has wavered between the interpretation which I adopted in my ruling at the beginning of the case and the interpretation put forward by [defence counsel] at the end. I directed the assessors along the lines developed by [defence counsel]. In the final analysis, however, I am satisfied that my original ruling was the sounder, that the Republic has merely to prove the gift and that thereupon the burden shifts to the accused to show on the balance of probabilities that it was not corruptly received and that it was not received as an inducement or reward for doing or forbearing to do or having forborne to do some act in relation to his principal’s affairs …. The prevention and eradication of corruption in a developing society such as this are issues of the highest priority. The foundations of the nation are in the process of being laid and the national ethic formulated. Standards must of necessity be well and truly established. The proposed rule would impose no undue burden on the Civil servant. He ought no tin any event to accept gifts from people with whom he is likely to have to deal in the course of his official duties. If, having taken such a gift, he finds himself obliged to show, on the balance of probabilities that he did not receive it corruptly as an inducement to take some action in relation to his principal’s affairs then there is no injustice done to him and public integrity if afforded further safeguard.”